IP case law Court of Justice

Plant varieties

Regulation (EC) No 2100/94 on Community plant variety rights

3 pending referrals

Referral C-239/18 (Saatgut-Treuhandverwaltung, 3 Apr 2018)


Referral C-186/18 (José Cánovas Pardo, 9 Mar 2018)


Referral C-176/18 (Club de Variedades Vegetales Protegidas, 7 Mar 2018)


9 preliminary rulings

Judgment of 9 Jun 2016, C-481/14 (Hansson)

Article 94 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights must be interpreted as meaning that the right to compensation which it establishes for the holder of a plant variety right that has been infringed encompasses all the damage sustained by that holder, although that article cannot serve as a basis either for the imposition of a flat-rate ‘infringer supplement’ or, specifically, for the restitution of the profits and gains made by the infringer.

The concept of ‘reasonable compensation’, provided for in Article 94(1) of Regulation No 2100/94, must be interpreted as meaning that it covers, in addition to the fee that would normally be payable for licensed production, all damage that is closely connected to the failure to pay that fee, which may include, inter alia, payment of default interest. It is for the referring court to determine the circumstances which require that fee to be increased, bearing in mind that each of them may be taken into account only once for the purpose of determining the amount of reasonable compensation.

Article 94(2) of Regulation No 2100/94 must be interpreted as meaning that the amount of the damage referred to in that provision must be determined on the basis of the specific matters put forward in that regard by the holder of the variety infringed, if need be using a lump-sum method if those matters are not quantifiable. It is not contrary to that provision if the costs incurred in an unsuccessful interlocutory application are left out of account in the determination of that damage or if the out-of-court expenses incurred in connection with the main action are not taken into consideration. However, a condition for not taking those expenses into account is that the amount of the legal costs that are likely to be awarded to the victim of the infringement is not such, in view of the sums he has incurred in respect of out-of-court expenses and their utility in the main action for damages, as to deter him from bringing legal proceedings in order to enforce his rights.

Judgment of 25 Jun 2015, C-242/14 (Saatgut-Treuhandverwaltungs)

In order to be able to benefit from the derogation provided for in Article 14 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights from the obligation to obtain the authorisation of the holder of the plant variety right concerned, a farmer who has planted propagating material obtained from a protected plant variety (farm-saved seed) without having concluded a contract for so doing with the holder is required to pay the equitable remuneration due under the fourth indent of Article 14(3) of that regulation within the period that expires at the end of the marketing year during which that planting took place, that is, no later than 30 June following the date of reseeding.

Judgment of 15 Nov 2012, C-56/11 (Raiffeisen-Waren-Zentrale)

Article 9(3) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community plant variety rights, as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998, is to be interpreted as meaning that the obligation of the supplier of processing services to provide information on the protected varieties in question is established if the request for information referring to a given marketing year was submitted before the expiry of that marketing year. However, there may be such an obligation so far as concerns information relating to up to three preceding marketing years, in so far as the holder of a Community plant variety right submitted a first request in respect of the same varieties and the same supplier of processing services during the first of the preceding marketing years covered by the request for information.

The sixth indent of Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights read in conjunction with Article 9 of Regulation No 1768/95, as amended by Regulation No 2605/98, is to be interpreted as meaning that the request for information made by the holder of a Community plant variety right to a supplier of processing services need not contain evidence to support the indications put forward therein. Moreover, the fact that a farmer has planted under contract a protected plant variety cannot, by itself, constitute an indication that a supplier of processing services has processed or intends to process the product of the harvest obtained by planting propagating material of that variety for planting. Such a fact may, however, in the light of the other circumstances of the case, lead to the conclusion that there is such an indication, which is for the referring court to determine in the dispute before it.

Judgment of 5 Jul 2012, C-509/10 (Geistbeck)

In order to determine the ‘reasonable compensation’ payable, under Article 94(1) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, by a farmer who has used the propagating material of a protected variety obtained through planting and has not fulfilled his obligations under Article 14(3) of that regulation, read in conjunction with Article 8 of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation (EC) No 2100/94, as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998, it is appropriate to base the calculation on the amount of the fee payable for the licensed production of propagating material of protected varieties of the plant species concerned in the same area.

The payment of compensation for costs incurred for monitoring compliance with the rights of the plant variety holder cannot enter into the calculation of the ‘reasonable compensation’ provided for under Article 94(1) of Regulation No 2100/94.

Judgment of 20 Oct 2011, C-140/10 (Greenstar)

In circumstances such as those at issue in the main proceedings, Article 94 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, as amended by Council Regulation (EC) No 873/2004 of 29 April 2004, read in conjunction with Articles 11(1), 13(1) to (3), 16, 27 and 104 thereof, must be interpreted as meaning that the holder or the person enjoying the right of exploitation may bring an action for infringement against a third party which has obtained material through another person enjoying the right of exploitation who has contravened the conditions or limitations set out in the licensing contract that that other person concluded at an earlier stage with the holder to the extent that the conditions or limitations in question relate directly to the essential features of the Community plant variety right concerned. It is for the referring court to make that assessment.

It is of no significance for the assessment of the infringement that the third party which effected the acts on the material sold or disposed of was aware or was deemed to be aware of the conditions or limitations imposed in the licensing contract.

Judgment of 8 Jun 2006, C-7/05 (Saatgut-Treuhandverwaltungs)

Without prejudice to the assessment made by the national court of the other circumstances relevant to each of the main proceedings, a flat-rate remuneration of 80% of the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the same area, in the event of recourse to the agricultural exemption referred to in Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights does not satisfy the condition that remuneration has to be ‘sensibly lower’ than the amount charged for the licensed production of propagating material within the meaning of Article 5(2) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94, as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998.

The criteria for determining the remuneration to be paid to the holder of a Community plant variety right are set out in Article 5(4) and (5) of Regulation No 1768/95, as amended by Regulation No 2605/98. Those criteria have no retroactive effect but they may serve as a guide for the calculation of that remuneration with respect to planting carried out before the entry into force of Regulation No 2605/98.

In order for an agreement concluded between organisations of holders and of farmers, as referred to in Article 5(4) of Regulation No 1768/95, as amended by Regulation No 2605/98, to be used as a guideline as regards all its parameters, that agreement must have been notified to the Commission of the European Communities and published in the Official Bulletin of the Community Plant Variety Office and that is so even if it was concluded before the date on which Regulation No 2605/98 entered into force. Such an agreement may provide for a rate of remuneration different from that laid down, in the alternative, in Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98.

In the absence of an applicable agreement between organisations of holders and of farmers, the remuneration of a holder of a Community plant variety right has to be established, pursuant to Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98, as a fixed amount which constitutes neither an upper limit nor a lower limit.

Judgment of 14 Oct 2004, C-336/02 (Saatgut)

The sixth indent of Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights in conjunction with Article 9 of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94 cannot be interpreted as allowing the holder of a Community plant variety right to request a supplier of processing services to provide the information specified in those provisions where the holder has no indication that the latter has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of a variety belonging to the holder, other than a hybrid or synthetic variety, which is covered by that right and belongs to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94, for planting.

The sixth indent of Article 14(3) of Regulation No 2100/94 in conjunction with Article 9 of Regulation No 1768/95 must be interpreted as meaning that, where the holder has some indication that the supplier of processing services has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of a variety belonging to the holder, other than a hybrid or synthetic variety, which is covered by a Community plant variety right and belongs to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94, for planting, the processor is required to provide him with the relevant information relating not only to the farmers for whom the holder has some indication that the processor has provided or intends to provide such services but also to all other farmers for whom he has processed or intends to process the product of the harvest obtained by planting propagating material of the variety concerned, where that variety has been declared or is otherwise known to him.

Judgment of 11 Mar 2004, C-182/01 (Saatgut)

Article 3(2) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community plant variety rights must be interpreted as meaning that a limited company is capable of constituting an ‘organisation of holders’ of plant variety rights for the purposes of that provision. Such an organisation may invoke the rights of holders who are members of another organisation where the other organisation is itself a member of the first organisation. However, it may not invoke the rights of holders who, although not members of the first organisation or of another organisation which is, have appointed it to safeguard their interests in return for a consideration;

The provisions of the sixth indent of Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights in conjunction with Article 8(2) of Regulation No 1768/95 cannot be construed as meaning that the holder of a Community plant variety right can require a farmer to provide the information specified in those provisions where there is no indication that the farmer has used or will use, for propagating purposes in the field, on his own holding, the product of the harvest obtained by planting, on his own holding, propagating material of a variety other than a hybrid or synthetic variety which is covered by that right and belongs to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94 Jann Timmermans von Bahr

Judgment of 10 Apr 2003, C-305/00 (Schulin)

The provisions of the sixth indent of Article 14(3) of Council Regulation (EC) No 2100/94, of 27 July 1994, on Community plant variety rights in conjunction with Article 8 of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94 cannot be construed as meaning that the holder of a Community plant variety right can require a farmer to provide the information specified in those provisions where there is no indication that the farmer has used or will use, for propagating purposes in the field, on his own holding, the product of the harvest obtained by planting, on his own holding, propagating material of a variety other than a hybrid or synthetic variety which is covered by that right and belongs to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94.

4 appeals

Judgment of 8 Jun 2017, C-625/15 (Schniga v CPVO)


Judgment of 21 May 2015, C-546/12 (Schr)


Judgment of 19 Dec 2012, C-534/10 (Brookfield New Zealand - Malus Mill)


Judgment of 15 Apr 2010, C-38/09 (Ralf Schr)



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